NC examines TASER use, excessive force policies

On Monday, the Durham City Council is expected to go behind closed doors in a specially called meeting

By Anne Blythe
The News & Observer

DURHAM, N.C. — The Durham Police Department has faced many vexing questions recently in the court of public opinion, from queries about a teen who died in custody to complaints of racial profiling and accusations of excessive force.

One of those topics — allegations of excessive force and the department's policy on when, where and how to use Taser stun guns — has spilled over to the courts.

A recent ruling in a Taser-use case, filed by Bryan DeBaun against Officer Daniel J. Kuszaj and the city of Durham, has buoyed civil rights advocates and others fighting for more limits on the device.

The North Carolina Supreme Court issued an order on Dec. 18 that remands the DeBaun case to the N.C. Court of Appeals for reconsideration as to whether the Durham Police Department's excessive-force policy violates the state constitution.

As civil rights advocates await further action by the state's appellate court, critics of the Durham Police Department are looking for more immediate details about some of the other prickly probes.

On Monday, the Durham City Council is expected to go behind closed doors in a specially called meeting. Though there has been no public disclosure about the agenda, officials have confirmed that the meeting — billed as calling for "attorney-client privileges" — will include police matters.

Mayor Bill Bell also has asked for a report on the recent death of Jesus Huerta, the 17-year-old high school student found shot dead on Nov. 19 while handcuffed in the back of a police car.

That incident has sparked widespread criticism, including two demonstrations that resulted in arrests. At a Dec. 19 rally, police used tear gas to break up the crowd, raising additional questions about the department's relationship with the city.

Huerta's family and friends repeatedly have posed questions about how the teenager got a firearm, whose gun it was, and whether the fatal shot was intentional or an accident.

Those questions remain under investigation by the police and the State Bureau of Investigation as they await results of an autopsy report. But city officials are pushing for a deeper public disclosure than the one provided by Chief Jose Lopez several days after the death.

The SBI was already investigating two other Durham cases of officer-involved deaths that happened in the second half of 2013, and calls for Lopez to resign or be fired have been ramped up since the Huerta incident.

On July 27, Jose Adan Cruz Ocampo, 33, was killed by police while a suspect in a nonfatal stabbing. Derek Deandre Walker, 26, was fatally shot after pointing his gun at police in a downtown standoff Sept. 17.

2009 TASER incident
DeBaun, who was injured in the Taser incident, sued the department on July 14, 2011, nearly two years after an encounter with Kuszaj left him with a fractured jaw, broken nose and chipped teeth.

According to court documents, DeBaun was on Holloway Street in Durham in the early hours of July 24, 2009, when Kuszaj fired a Taser gun at him twice.

He was carrying a case of beer across the street when Kuszaj stopped his squad car and left the headlights on in the darkness.

DeBaun, who at 23 weighed 165 pounds and stood 5 feet 9 inches tall, was unarmed when the officer frisked him. DeBaun said he told the officer he had been drinking and was on his way home.

Kuszaj testified at a court hearing for criminal charges filed in the case that it was his intent that night to detain DeBaun "for his own protection, not to arrest him."

DeBaun recalled in a deposition for the lawsuit: "I believe he patted me down, and then was going to check my ID, but he started to put handcuffs on me, and I asked him if I was under arrest, and he said, 'No.' "

Court documents state DeBaun then tried to flee, and that's when the officer fired the Taser gun at his back.

Alex Charns, the Durham attorney representing DeBaun, stated in court documents that there was no evidence that Kuszaj ever yelled for DeBaun to stop as the department's training requires.

"After Mr. DeBaun's head and face slammed into the sidewalk pavement," the court document states, the officer "threatened to use the TASER a second time" and the Police Department's internal investigation shows the weapon was used twice.

An EMS squad transported DeBaun to the hospital for facial bone fractures after removing the probes shot into his back to transport the electrical charges.

While DeBaun awaited surgery, the officer issued citations charging the injured man with three — being drunk and disruptive; impeding traffic; and resisting, delaying and obstructing an officer.

DeBaun, who accrued medical bills in excess of $30,000 related to the incident, was convicted of impeding traffic, but the other two charges were dismissed.

"Can force, tantamount to deadly force, be used by a police officer against an unarmed, fleeing intoxicated person for the person's own protection after he is told that he is not under arrest?"

Is policy excessive?
That was the question that Charns, DeBaun's attorney, posed for the N.C. Supreme Court in a petition for discretionary review filed in September.

The N.C. Court of Appeals issued a split ruling, but sided with the lower court, saying the officer and city largely were protected through government immunity laws.

But several weeks ago, without ruling on the merits of the claims, the state Supreme Court ordered the Court of Appeals to look at the case again.

Charns contends the "general warrant" provision of the state constitution is equivalent to the U.S. Constitution's ban on unreasonable searches and seizures. Using an electric shock, "force tantamount to deadly force," against an unarmed man who was trying to flee certainly fits the definition of unreasonable, Charns has argued.

The city's attorneys have argued that courts have allowed police to use stun guns against fleeing suspects, even in jaywalking cases.

Durham police spokeswoman Kammie Michael said the department would not comment on the case as it is "pending litigation."

Joel Craig, an attorney for Kuszaj, also declined to discuss the case.

Raul Pinto, a staff attorney for the ACLU of North Carolina, a civil rights organization that has been fighting to put more limits on the use of the electrically charged devices, was encouraged by the N.C. Supreme Court order.

"We hope that a decision in the DeBaun case brings about much needed change, not only in Durham, but throughout the state," Pinto said.

Charns said he hoped the police would see no need to wait for further action from the N.C. Court of Appeals to revise a policy that went into effect shortly after Lopez became chief. The policy, DeBaun and his attorney contend, should not allow police to seriously injure or kill someone accused of nothing more than a traffic offense.

"One of the things that is important to Mr. DeBaun is that this policy gets changed," Charns said. "Their policy is pretty grotesque and dangerous."